The New York Child Passenger Protection Act, also known as Leandra’s Law, makes penalties for drunk driving with child passengers the toughest in the nation.

Beginning on December 18, 2009, Leandra’s Law makes it a first-time Class E felony offense for driving under the influence of alcohol and/or drugs while transporting passengers age 15 and under. The offense carries a sentence of one to four years in state prison, a fine of $1000 to $5000, and the issuance of a mandatory ignition interlock device.

In the event of serious physical injury or death to a child, Leandra’s Law increases penalties. If a child is injured, the driver will be charged with a Class D felony and face a state prison sentence of one to seven years. If reckless driving is a contributing factor, the charge will be a Class C felony with a maximum prison sentence of 15 years.

A driver who causes the death of a child will be charged will be a Class C felony having a maximum sentence of 15 years. If reckless driving is a contributing factor, the driver will be charged with a Class B felony with a maximum sentence of 25 years.

Leandra’s Law was drafted in the wake of the tragic crash on Oct. 11, 2009 that resulted in the death of 11-year-old Leandra Rosado. Leandra was killed when the intoxicated driver of the vehicle crashed her car, carrying six other child passengers.

At defendant’s state court drug trial, the prosecution introduced certificates of state laboratory analysts stating that the cocaine seized by police and connected to him was of a certain quantity. As required by Massachusetts law, the certificates were sworn to before a notary public and submitted as prima facie evidence of what they asserted. Defendant objected on the basis that Crawford v. Washington required the analysts to testify in person.

The trial court disagreed, the certificates were admitted, and petitioner was convicted. The Massachusetts Appeals Court affirmed, rejecting petitioner’s claim that the certificates’ admission violated the Sixth Amendment The U.S. SUPREME COURT held in MELENDEZ-DIAZ v. MASSACHUSETTS on June 25, 2009 that the admission of the certificates violated defendant’s Sixth Amendment right to confront the witnesses against him.

New York State criminal records of arrests not leading to conviction may be sealed (including expunged, erased, or purged). The individual can deny the existence of the arrest, unless he or she is applying for a law enforcement job.

Criminal conviction records can be sealed (including expunged, erased, or purged).In 2009, a law was passed as part of Rockefeller Drug Law Reform to provide conditional sealing of first-time drug offenses for defendants who complete a diversion program and up to three drug related misdemeanor convictions.

Defendants may deny the existence of a conditionally sealed record. All other adult criminal convictions (misdemeanors and felonies) may not be sealed.

In New York, violations, such as disorderly conduct, are not considered criminal convictions, and most (with the exception of certain violation-level convictions for loitering or DWI) may be sealed at the state level. Records relating to the underlying arrest (fingerprints, arrest photo, etc.) are sealed or destroyed, and the conviction will not appear on a DCJS rap sheet.

Records of juvenile delinquency proceedings resolved in the individual’s favor are sealed unless the interests of justice require otherwise. Individuals age 16 and over may request sealing of juvenile delinquency adjudication records (not involving designated felonies) upon written motion to the court. The court may seal such records if it is in the interests of justice.

The sealed records will not appear on the copy of the rap sheet that DCJS sends to employers and others. But violation-level convictions are not sealed on the court level. The court records regarding the fact of the conviction are not sealed. However, the New York State Office of Court Administration (OCA) has agreed not to include information about violation-level convictions in records it sells to the public.

Buffalo Criminal defendants benefit from plea bargaining by eliminating the uncertainty of a criminal trial and avoiding  the maximum sentence. The prosecution also benefits by not having to prove their case and allowing them to handle more cases.

The U.S. Supreme Court in  Santobello v. New York  noted that the disposition of charges after plea discussions is not only an essential part of the process but a highly desirable part for many reasons.

• It leads to prompt and largely final disposition of most criminal cases;
• It avoids much of the corrosive impact of enforced idleness during pretrial confinement for those who are denied release pending trial;
• It protects the public from those accused persons who are prone to continue criminal conduct even while on pretrial release;
• And, by shortening the time between charge and disposition, it enhances whatever may be the rehabilitative prospects of the guilty when they are ultimately imprisoned.

Your Buffalo criminal defense lawyer will attempt to resolve or dispose of your case without a trial through plea bargaining with the prosecutor. A plea bargain can take a variety of forms. The prosecutor may ask that you plead guilty in exchange for his or her promise to recommend to the judge that a particular sentence be imposed.

In certain cases, the prosecutor may offer to allow you to plead guilty to a less serious offense than the one with which you are charged. Such a plea reduces the range of sentences that the judge may impose.

The judge is the only one who can decide what your sentence will be, subject to limits set by law. All plea bargains must be approved by the judge.

Plea bargaining may continue up to or even during trial. If you do not want a trial, you may always plead guilty to all the charges  against you whether or not the prosecutor agrees. The judge will then decide your sentence.

There are sentence ranges for all offenses. Offenses are arranged in these categories: felony, misdemeanor, and violation. Each category is further divided into classes.

A New York felony is a crime for which you can receive a sentence of imprisonment of more than one year or a sentence of death for the crime of murder in the first degree. The classes of felony offenses are: AI, AII, B, C, D, and E .

A New York misdemeanor is a crime for which you can receive a jail sentence of one year or less. The classes of misdemeanor offenses are A and B misdemeanors. Jail sentences for violations may not be greater than fifteen days.

A non-jail sentence may also be imposed, such as a term of probation for misdemeanors and certain felonies, or a conditional discharge, unconditional discharge, restitution, or a fine. Sometimes, a non-jail sentence may be imposed along with a jail sentence. In such a case, the probationary sentence is served after the jail sentence.

The U.S. Supreme Court in  Montejo v. Louisiana on 5/26/09 overruled a 23-year-old decision that bars police from questioning suspects without the presence of an appointed lawyer.

The court overturned  Michigan v. Jackson (1986) which held that once a suspect has asserted a right to counsel, any waiver of that right during police questioning is not valid unless the suspect initiated communication with them.

Petitioner Jesse Montejo waived his Miranda rights when police questioned him in connection with the robbery and murder of the owner of a dry cleaners.  He ultimately confessed to the crime.

At a later preliminary hearing, the judge ordered the appointment of a public defender. After another visit by detectives, Montejo wrote a letter of apology, which was introduced at his trial and challenged on appeal.

Justice Scalia wrote in the majority decision that when a court appoints counsel for an indigent defendant in the absence of any request on his part, there is no basis for a presumption that any subsequent waiver of the right to counsel will be involuntary.

No reason exists to assume that a defendant like Montejo, who has done nothing at all to express his intentions with respect to his Sixth Amendment rights, would not be amenable to speaking with the police without having legal counsel present. And no reason exists to prohibit the police from inquiring.

Justice Scalia noted that three other Supreme Court decisions sufficiently protect defendants from being badgered into confessing:

• Miranda v. Arizona requires defendants to be advised of the right to a lawyer and the right against self-incrimination.
• Edwards v. Arizona  requires police interrogation to stop once a defendant invokes his right to have counsel present.
• Minnick v. Mississippi bars further police interrogation without the presence of counsel after the initial request for a lawyer.
• Under these cases, a defendant who does not want to speak to the police without counsel present need only say as much when first approached and given the Miranda warnings. At that point, not only must the immediate contact end, but ‘badgering’ by later requests is prohibited.

These are the types of suppression hearings requested by the New York criminal defense attorneys:

Mapp hearing: whether the police legally seized property from you.

Huntley hearing:  whether the police acted legally when and if you made a statement to them and whether the statement was voluntarily made.

Wade hearing:  whether the police used fair methods when they had witnesses identify you as having committed the crime.

Dunaway hearing:  whether the police acted legally in arresting you.

During the suppression hearing, testimony is taken from police officers and witnesses. Your lawyer will have a chance to cross-examine the prosecution witnesses. You will also be given a chance to testify and call witnesses. If the prosecutor does not prove that the officers acted legally, or if you, through the evidence you present, prove that the police acted illegally, the judge will suppress the evidence.

If the judge suppresses the evidence, the prosecutor will not be able to introduce the evidence against you at your trial. If the prosecutor has no other evidence against you and does not intend to appeal the judge’s decision, he or she will most likely file a motion asking the judge to dismiss your case.

Buffalo, New York grand jury proceedings are secret and are not open to the public. The grand jury consists of sixteen to twenty-three people who listen to the evidence and determine whether there is enough evidence to put a criminal defendant on trial for a felony.

If they decide that there is enough evidence, they vote an indictment.

You have the right to testify before the grand jury. Your lawyer may go with you to the proceeding. However, your lawyer must remain silent during your testimony.

Your lawyer may not address the grand jury or object to the prosecutor’s questions. If you wish to speak with your lawyer before testifying, you may do so outside the grand jury room.

If you decide to testify before the grand jury, you will probably be cross-examined by the prosecutor. The prosecutor will ask any questions the grand jurors may have for you. You may ask that the grand jury hear witnesses willing to testify for you. But you are not allowed to be present in the grand jury room while they testify.

If the grand jury does not vote an indictment, you will be released from jail. If the grand jury votes an indictment, your case will be transferred from the local criminal court to Supreme Court or County Court for another arraignment. You will be formally charged with the crimes voted by the grand jury in the indictment. You must plead either guilty or not guilty. The conditions of your bail may also be reviewed and plea bargaining may take place.

The New York Zero Tolerance law applies to those under age 21 who operate a motor vehicle with a blood alcohol concentration (BAC) of .02% or more but not more than .07%.

If you are stopped by a police officer in New York for having consumed alcohol and the officer deems that you are younger than 21 and appear to have consumed alcohol, you will be temporarily detained for the purpose of taking a breathalyzer test to determine your blood alcohol level (BAC).

If you refuse to take a breath test, you will be subject to a license revocation of at least one year.

If your BAC is .02% or more, but not more than .07%, you will be charged with the traffic offense of “driving after having consumed alcohol.” You will be given a notice to appear for a hearing before an administrative law judge of the New York Department of Motor Vehicles (DMV).

If your BAC is more than .05% but not more than .07%, the police will have the option of charging you with “driving while ability is impaired by alcohol” (DWAI).

If your BAC is more than .07% but less than .08% you will be charged with the offense of “driving while ability is impaired by alcohol” (DWAI).

If your BAC of .08% or more, the charge will be “driving while intoxicated” (DWI). If you are charged with either DWI or DWAI, you will be arrested and requited to appear in criminal court.

While being charged with driving after consuming alcohol is considered a serious violation of the law, it is not designated as a crime and you cannot be sentenced  to jail.

However, at the very least you will have your New York license suspended for six months and pay a civil penalty of $125. You must pay an additional $100 fee when your license is returned.

The charge will remain on your record for three years or until you are 21, whichever is longer. You will be required to surrender  your license to the  New York DMV.

Your New York license will be returned to you at the end of the suspension period

If you have any prior alcohol-related traffic offenses on your record, your license will be revoked for one year or until you reach the age of 21, whichever is longer. You will be required to surrender your license to the New York  DMV.

At the end of the revocation period, you may apply for a permit and start the licensing procedure.

If your New York license is suspended under the zero tolerance law, and you do not have any prior alcohol-related convictions on your license, you may be eligible for a conditional license. However, in order to receive one, you must enroll in and complete an approved Driver Program.

Both the program and the conditional license carry additional costs. A conditional license will allow you to drive back and forth to work and school, but it is not the same as a full license.

For further information on New York jail time and fines for DWI, see Buffalo and WNY DWI Sentencing guidelines.

A hearing was held in the Dutchess County, New York Justice Court to determine whether probable cause existed to stop the defendant and arrest him for driving while intoxicated.

A trooper testified that he observed the defendant at 3:20 am crossing the fog line (solid white line along the right edge of the road) three times.

Another trooper testified that he saw defendant’s car cross the fog line once.

Defendant testified that he was conscious of the police, was cautious about not exceeding the speed limit and never crossed the fog line.

The New York Appellate Term, Second Department has held that crossing a fog line does not constitute a violation of the New York Vehicle & Traffic Law.

The only predicate offered for the stop was that the defendant crossed the fog line, which was not a violation.

Therefore, the DWI charge was dismissed because the police had no probable cause to stop and detain the defendant.

If you refuse a chemical test for BAC (Blood Alcohol Content), your license will be suspended at arraignment and revoked for at least one year (18 months for a commercial driver) at a Department of Motor Vehicles hearing.

If you are age 21 or over and you have a second refusal within five years of a previous refusal or alcohol conviction, your license is revoked for 18 months (permanently for a commercial driver).

If you are under age 21, and you have a second refusal within five years of a previous refusal or alcohol conviction, your license is revoked for one year or until age 21, whichever is longer.

You will also be subject to a civil penalty of $500 (second offense, $750). A driver under 21-years-old who refuses to take a chemical test under the Zero Tolerance Law is subject to a one-year license revocation and a $300 civil penalty.

The penalties and fines for refusing to submit to a chemical test are separate from, and in addition to, the penalties and fines for alcohol or drug-related convictions.